Sunday, October 28, 2012

Representing the Accused: A Practical Guide to Criminal Defense

Readers of this blog know that Jill Paperno, the Second Assistant Monroe County Public Defender, is a frequent contributor. Jill’s posts typically provide practical advice to defense attorneys on how to defend a particular type of case (see or see or see)  or  how to deal with a trial or evidentiary issue (see  or see). Jill has recently authored a book, Representing the Accused: A Practical Guide to Criminal Defense (Thomson Reuters Westlaw), which is aimed at providing meaningful guidance to criminal defense attorneys as to how to handle each stage in a criminal case from arrest to final disposition.  It is available as both a book and an e-book at Amazon (see) and directly from the publisher (see).

The book is full of practical advice on topics such as holding the first interview with a client, maintaining files, conducting investigations, and preparing for hearings, trials, negotiations, and pleas. This book, based on Jill’s experience in thousands of cases, provides useful answers to the questions attorneys, particularly inexperienced attorneys, often face, of what needs to be done next and how should it be done. For a dtailed review in the New York State Defender Association's Report, see.

Following the book’s advice will help attorneys provide high quality representation to their clients.

Criminal Law Slanguage of New York, 5th edition

A new edition of a dictionary of New York legal expressions was just released:  Criminal Law Slanguage of New York, 5th edition. Glenn Murray and Gary Muldoon are the coauthors. The book has definitions for federal and state-specific terms, such as Miranda warnings, hate crime, falsus in uno falsus in omnibus, opening the door, choice of evils defense, voice stress analysis, Adam Walsh Act, cryptanalysis, best evidence rule: about 1,500 entries, in all. 

It is available from
Barnes and Nobles (see) and Amazon (see) or directly from the publisher:
Bridge Publishing Group, LLC, 39 Concetta Court, Getzville, NY 14068

Gary Muldoon is also the author of  the excellent Handling a Criminal Case in New York, 2012-2013 edition (see).

Friday, October 26, 2012

Defending Burglary Charges

Jill Paperno,  Second Assistant Monroe County Public Defender
and Brian Shiffrin

The Monroe County District Attorney usually indicts burglaries using the language that the defendant "entered or remained" unlawfully in the building or dwelling.  Yet in 1989, in People v Gaines (74 NY2d 358 [1989]), a case prosecuted by the Monroe County District Attorney, the Court of Appeals held that entering burglaries are actually quite distinct from remaining burglaries and that one cannot simultaneously engage in both.

An entering burglary is committed when one knowingly enters unlawfully, with the intent to commit a crime inside. A remaining burglary is the type of burglary in which someone may enter when they had license or privilege to do so, but remains past that time unlawfully for the purpose of committing a crime. That doesn't mean staying too long at the party, when the hosts want to go to sleep.  It means, as an example, staying without permission in a store after the store has closed in order to commit a crime. As stated in Gaines, “[i]n order to be guilty of burglary for unlawful remaining, a defendant must have entered legally, but remain for the purpose of committing a crime after authorization to be on the premises terminates. And in order to be guilty of burglary for unlawful entry, a defendant must have had the intent to commit a crime at the time of entry. In either event, contemporaneous  intent is required.”  People v Gaines, 74 NY2d 358, 363 (1989).

In Gaines, the Court held that it was reversible error for the trial court to “have referred to unlawful remaining in its burglary charge, since the situation to which that language applies was not present in the case." Id. at 363. Thus, as the trial attorney did in Gaines,  in cases in which there is no proof of lawful entry, counsel  must request that the jury strike the "or remaining" language from the description if your client's charge and from from both the jury instruction on burglary and, if a lesser of criminal trespass is being charged, from the lesser, too.  Indeed, one wonders how a properly charged grand jury can charge, based on the same conduct,  that the defendant entered illegally to commit a crime and that at the same time he entered lawfully, but remained after his license to be in the building expired, for the purpose of committing a crime.

The Court in Gaines also held that "[m]ost importantly, defendant was entitled to a charge clearly stating that the jury must find that he intended to commit a crime at the time he entered the premises unlawfully.” Id. at 363. Thus, counsel must makes sure that the jury is so instructed.

Since Gaines is the decision in which the Court of Appeals explains what constitutes burglary and what distinguishes burglary from mere commission of trespass and a crime, it is essential that an attorney defending a burglary case read and be familiar with the various parts of the holding in Gaines. (In Gaines the defense was that there was a trespass and a larceny and not a burglary, since the intent to commit larceny was formed after the unlawful entry.)

Another issue that arises in burglaries is the confusing state of the law with respect to what crime is intended at entry or unlawful remaining. The law simply requires that a defendant have the intent to commit any crime inside the building.  Often, defense counsel serve a request for bill of particulars seeking...well...particulars, about the offense, including what crime the defendant allegedly intended to commit.  Prosecutors respond that they don't have to specify.  And strangely, they're right. “(T)o secure a conviction for burglary the State 'need not establish what particular crime the intruder intended to commit’ (cite omitted), nor is it necessary that the intended crime in fact be committed (cite omitted).” People v Mackey, 49 NY2d 274, 279 (1980). (However, the Court of Appeals has also held that if the indictment does specify which crime the defendant intended to commit, the People must prove that crime, not a different one. People v Barnes, 50 NY2d 375, 379, n.3 [1980]).

But if, as is typically the case, a prosecutor does not specify the intended crime, there are problems that arise at the time the jury gets charged.  The jury is instructed that in order to convict they must find proof beyond a reasonable doubt that the defendant intended to commit a crime inside the building.  But if the crime is not specified, what exactly is the jury going to think?  How do the jurors know what is merely obnoxious behavior, what is a violation, and what is a crime (which is defined as a felony or misdemeanor in the Penal Law)?

If the prosecutor has not specified, then defense counsel should consider submitting an instruction for the judge to read to the jury.  One that Jill drafted recently, in a case involving a physical confrontation in a dwelling, is set forth below. The prosecutor argued that a problem with this  instruction is that the word crime includes felonies and misdemeanors, but the words “felony” and “misdemeanor” are defined by the potential sentence one can receive. And a jury is not supposed to consider sentencing. But how else can the judge properly define what constitutes a “crime” when none is specified and the jury needs to know that certain conduct does not constitute a crime? Although the judge to whom this proposed charge was submitted did not read the entire instruction, the judge did note that our Penal Law contains three types of offenses - violations, misdemeanors and felonies.  And the judge noted that violations are not crimes.
But what if the jury had asked about whether particular conduct was a crime or violation?  Or whether they could hear a list of crimes that might have applied?  There is a serious problem with this statute and the state of the law as it stands now.  Perhaps defense counsel need to start more vigorously objecting to the refusal to specify the underlying charge, pointing out to the court the possible problems with jurors being left to speculate what constitutes the crime that may have occurred when no crime is specified.

Defense counsel also needs to be very familiar with the states of mind - that's right, plural - required for conviction in a burglary case.  Although we often refer to the entry (or remaining) in burglary as being unlawful entry, it's actually knowing unlawful entry (or remaining).  So not only does the prosecutor have to prove beyond a reasonable doubt the entry was unlawful, but also that your client knew at the time it was unlawful.  In the New York Criminal Jury Instructions Charges of General Applicability, there is a charge on what "knowing" means.  Consider requesting it to emphasize the importance of that element.

The other requisite state of mind is intent to commit a crime inside, as discussed above.  So there's an awful lot of stuff about what was on your client's mind at the time of entry or remaining that must be proven.  This is often the basis of a defense.  If you have an argument that there is reasonable doubt on the intent to commit a crime on a burglary in the second degree, you may wish to ask for the lesser included misdemeanor of criminal trespass in the second degree.  But be aware - the lesser of a burglary third is not criminal trespass in the second degree or criminal trespass in the third degree, since those statutes have additional elements, and you might be able to commit the higher offense without committing the lesser.

Another thing to keep in mind is the language of the indictment.  In the case just tried, the indictment specified both the address of the building and the apartment within it. In other words, the entering and knowingly remaining unlawfully charge related to a particular apartment.  The judge read the instructions, initially inadvertently leaving out the apartment number. So the jury could have concluded that upon entry to the building with the intent to commit a crime inside, the burglary had been completed. But in this case, there were intervening circumstances that affected the defendant's state of mind inside. So it was very important that the jury focus on what happened at the threshold to the apartment - not the entrance to the building. The judge quickly corrected the charge once this was pointed out. But it's yet another lesson in why it is so important not to take that well deserved and desperately needed nap during the jury charge.

The charge of burglary in the second degree has two subdivisions. The first relates to knowingly unlawfully entering or remaining in a building with the requisite intent either armed with one of several specified weapons or causing injury.  The second subdivision relates to entry into a building when the building is a dwelling.  Penal Law § 140.00(3) defines a “dwelling”as “a building which is usually occupied by a person lodging therein at night.” What constitutes a dwelling under this provision is an issue that is often litigated in these cases.  Unoccupied dorm rooms during the summer break?  Homes where occupants are vacationing?  Motel rooms?  Hallways of apartments?  Vacant homes?  The following three Court of Appeals cases discussing and deciding what constitutes a dwelling need to be reviewed if the issue of whether a building is a dwelling is going to be raised at trial:  People v Barney, 99 NY2d 367 (2003) (evidence that house defendant entered at night was a “dwelling” was sufficient to support conviction of burglary in the second degree, where house was fully furnished with working utilities, it could have been occupied overnight, and it ordinarily was occupied by resident who had died three days earlier); People v Sheirod, 124 AD2d 14 (4th Dept.1987) (house remained a dwelling even thought the inhabitants had been absent for more than a year];  People v Quattlebaum, 91 NY2d 744 (1998) (school building with an office on the fifth floor containing a bed that was sometimes used for overnight stays was not a dwelling). 

Make sure you investigate your case and do the legal research when handling a case in which the alleged dwelling might not be one. Burglary in the third degree is simply knowing unlawful entry or remaining in a building with the requisite intent.  If one of the issues in your case is whether the building was a dwelling, you might be asking the court to charge burglary third as a lesser included offense. The difference is sentences that can be imposed on burglary in the second degree, a class C violent felony offense, and  those available for burglary in the third degree, a class D non- violent felony offense, is a big one.

Another issue you may encounter in handling burglary cases is whether a partial entry into a building is enough to constitute a burglary, rather than an attempt. 

Finally, in a case decided this week, the Court of Appeals decided that entry for the purpose of engaging in otherwise legal conduct made illegal solely because it is prohibited by an order of protection can be the basis for the intent element.  See,  People v Cajigas, __ NY3d __, 2012 WL 5131395, 2012 NY Slip Op 07049 [10/23/12].  Thus, one fact - the existence of an order of protection - may satisfy the knowing unlawful entry as well as the intent elements.  However, the mere entry into a building  at the time an order of protection is effect cannot be the basis for the intent element. See,  People v Lewis, 5 NY3d 546 (2005) ("Unlawful entry cannot itself be used as the sole predicate crime in the "intent to commit a crime therein" element of burglary. If it could, every violation of a do-not-enter provision of an order of protection would become a burglary the instant defendant knowingly entered upon the banned premises"). In other words, it appears that a burglary charge should not be based solely on the double counting of the order of protection - unlawful entry based on the order, and intent to commit a crime based on a claim that the intent was to violate the order.


I have read you my instruction defining burglary in the second degree.  I will now turn to the meaning of the word crime.

 As I have instructed you, in order for you to find the defendant guilty you must conclude beyond a reasonable doubt that the defendant unlawfully entered a dwelling and that at the time of such unlawful entry he intended to commit a crime therein.

 Not all conduct which is offensive or annoying constitutes a crime.  Thus, a person may engage in an argument or other behavior that may be offensive, but not necessarily be guilty of committing a crime.

 According to our Penal Law, the word crime is defined as a misdemeanor or felony Penal Law Section 10.00(6).  A misdemeanor is “an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days may be be imposed.” Penal Law Section 10.00(4)  A felony is “an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.” Penal Law Section 10.00(5)

Our law also recognizes a third level of offenses, not classified as crimes, which are called violations. A violation is “an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.” Penal Law Section 10.00(3)

 Harassment in the Second Degree is a violation.  The definition of harassment in the second degree is as follows:
A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: (1) He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or (2) He or she follows a person in or about a public place or places; or (3) He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.” Penal Law section 240.26

Thus, if you conclude that the prosecution has proven beyond a reasonable doubt that the defendant entered the apartment unlawfully, and that at the time he entered unlawfully he intended to commit therein a crime as defined by our penal law, you must find him guilty of burglary in the second degree.  If, on the other hand, you conclude that the prosecution has failed to prove beyond a reasonable doubt that the defendant entered the dwelling unlawfully, or that the prosecution has failed to prove beyond a reasonable doubt that at the time of such entry the defendant intended to commit a crime therein as defined by our Penal Law, you must find the defendant not guilty of Burglary in the Second Degree.

Disclosure: Brian argued Gaines on a brief written by Howard Broder and argued Sheirod on a brief written by Janet Somes.

Wednesday, October 24, 2012

Leave to Appeal Granted on Issue of Permissible Limits of Police Deception During Interrogation

Last week, Jim Eckert posted (see) on the conflicting decision of the Appellate Divisions for the Second and Third Department as to the limits on permissible police deception during interrogation. In both cases, the police had purposely misled a suspect into believing that the person the suspect was accused of assaulting was alive.

In People v Thomas (93 AD3d 1019 [3d 2012]), Mr. Thomas was suspected by police in a shaken baby case.  Police knew that the child was not expected to survive, and yet falsely told Thomas, in a recorded interrogation, that they needed to know exactly what the defendant did, so that treatment of his child could be effective.The Third Department rejected Mr. Thomas's contention that this tactic rendered his resulting statement inadmissible . The Court held, in part, that this deception "did not create a substantial risk that [Mr. Thomas] might falsely incriminate himself."

In People v Aveni (2012 WL 4901136, 2012 N.Y. Slip Op. 06968 [2d Dept 10/17/12]), Mr.Aveni was suspected by the police in the drug overdose death of his girlfriend.  However, he was told by police that she was being treated and that she would die without proper care, which required telling the doctors what had happened. Mr. Aveni admitted to injecting her with heroin. The Second Department held that the police deception coerced Mr. Aveni to speak at all, and, thus, constituted, improper pressure.

As Jim pointed out there are two dangers with respect to the use of overbearing deception.The first, addressed by the Third Department, is the risk that the defendant will be coerced into making a false confession. The second danger, addressed by the Second Department, is that the suspect will be coerced into making a statement at all, true or false.

On October 23, Court of Appeals Judge Robert Smith granted Mr. Thomas leave to appeal. The Thomas decision will provide an opportunity to consider the appropriate limits on police deception during interrogations.

Another case pending before the Court of Appeals raising questions about the limits of police interrogation tactics is People v Guilford (96 AD3d 1375 [4th Dept 2012]), in which the Court will consider the admissi bility oif statements made  after a 49–hour interrogation, where there was an eight–hour break between interrogation and his statements.

The issue of the proper limits for police interrogation is heightened by an increased awareness, as a result of DNA exonerations, that courts and juries have often accepted as voluntary and reliable, statements which are neither true nor voluntary. (Steven Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891-1007 [2004]). The 2009 New York State Bar Association Report regarding 53 recent wrongful convictions in New York found false confessions to be a leading cause of these wrongful convictions.

Tuesday, October 23, 2012

New York Court of Appeals Determines Who Decides Whether to Request that the Jury Consider a Lesser Included Offense - Counsel or Defendant

In People v Colville (2010 NY Slip Op 07185 [2d Dept 10/5/10]) the Appellate Division, Second Department conducted a thorough review of the cases and commentaries on the question of whether the decision to have the jury consider a lesser included offense is a fundamental one to be made by the defendant or a strategic or tactical one for counsel. As the Court noted
Having accepted the assistance of counsel, a defendant retains authority over certain fundamental decisions (see Jones v Barnes, 463 US 745, 751; People v Colon, 90 NY2d 824, 825; People v White, 73 NY2d 468, 478, cert denied 493 US 859). Strategic and tactical decisions, in contrast, rest with counsel (see People v Colon, 90 NY2d at 826; Arko v. Colorado, 183 P3d 555, 558 [Colo]). The demarcation between the two, however, is elusive (see Government of Virgin Is. v Weatherwax, 77 F3d 1425, 1433, cert denied 519 US 1020).
After detailing the division of authority on this issue, the Second Department decided the case without resolving whose decision control as to seeking to have a lesser offense charged.  Instead, that Court concluded that under the facts of the Colville case, in which counsel acquiesced to the defendant's decision not to request submission of lesser-included offenses to the jury, it did not have to reach a decision on this issue, since such acquiescence does not constitute ineffective assistance of counsel even if it was decision to be made by counsel. The Court, thus, affirmed, Colville's conviction.

Judge Read of the Court of Appeals granted Mr. Colville leave to appeal. And, writing for a 4 judge majority, Judge Read and the Court of Appeals in People v Colville (2012 NY Slip Op 07047,_NY3d_ [10/23/12]) has finally provided New York attorneys and judges with much needed guidance on this issue. The Court held that "that the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel." Thus, the Court held it was reversible error for the trial court to refuse to charge lesser offenses as requested by counsel " because defendant objected."

The majority, noting that this was the near unanimous position of other courts, rejected the District Attorney's argument that the decision as to whether to request a lesser offense was a fundamental one to be made by the defendant, such as the decision as to whether to enter a guilty plea (Jones v Barnes, 463 US 745), or to request consideration of an affirmative defense (see People v. Petrovich, 87 NY2d 961).

Sunday, October 21, 2012

Bias is Like Pregnancy; Admission for Context is Not Admission for Truth

In reversing a murder conviction  upon finding two different reversible  errors, the New York Court of Appeals in People v Harris (_NY3d_, 2012 NY Slip Op 06990, 3/18/201) clarifed the law in two respects.

First, the Court made clear that just as one cannot be a little pregnant, a prospective juror cannot have a little bias and still be qualified to serve. In Harris a prospective juror instated that that she had "an opinion slightly more in one direction than the other" concerning defendant's guilt or innocence. When asked by defense counsel if her opinion would impact her ability to judge the case based solely on the evidence presented at trial, the prospective juror responded, "[H]ow I feel, opinion-wise, won't be all of what I consider if I'm on the jury," but admitted that it would be "[a] slight part" of what she would consider (emphasis supplied). Trial counsel's challenge for cause was denied. Mr. Harris then utilized a peremptory challenge on the prospective juror and exhausted his peremptory challenges, and, therefore, preserving the for review (see CPL 270.20 [2]) the issue of whether the denial for cause was error.

In reversing Mr. Harris's conviction, the Court of Appeals first noted that it had
consistently held that "a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial" (People v Chambers, 97 NY2d 417, 419 [2002]; see People v Arnold, 96 NY2d 358, 363 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]). "When potential jurors themselves say they question or doubt they can be fair in the case, trial judges should either elicit some unequivocal assurance of their ability to be impartial when that is appropriate, or excuse the juror when that is appropriate," since, in most cases, "[t]he worst the court will have done . . . is to have replaced one impartial juror with another impartial juror" (People v Johnson, 17 NY3d 752, 753 [2011] citing People v Johnson, 94 NY2d 600, 616 [2000]). 

Then  the Court applied these holdings, and ruled that upon hearing from the prospective juror about her sligh opinion that would play a slight part in her deliberations,

it was incumbent upon the trial court to conduct its own follow-up inquiry of the prospective juror once she stated that her preexisting opinion would play only "[a] slight part" in her consideration of the evidence. Given the absence of that inquiring, the trial court committed reversible error in denying defendant's for-cause challenge (see Johnson, 17 NY3d at 753).
Thus, the the Court made clear that even a juror who indicates that she has a slight bias is unqualified to serve unless she subsequently gives the requisite unequivocal assurance of impartiality.

The second basis for reversal was the failure of the trial court to instruct the jury that when hearsay evidence admitted for context it was error to fail to clearly instruct the jury that the hearsay statements were not to be considered for their truth.

Disclosure: Bill Easton and represented Mr. Harris on this appeal. Bill was also the trial attorney who preserved both of these errors.

Friday, October 19, 2012

Important Decision by the Second Circuit Court of Appeals Addressing the Reliability of an In-Court Identification

In Young v. Conway (2d Cir. 10/16/2012), in affirming the granting of a writ of habeas corpus and the reversal of a New York conviction, the United States Court of Appeals for the Second Circuit addressed the reliability of eyewitness identification when it ruled Tuesday that defendant Rudolph Young’s constitutional rights were violated by the admission of in court identification testimony after evidence regarding a lineup identification had been suppressed as the product of an unlawful arrest. The unanimous decision cited with approval scientific research that it was presented about witness memory.

The complainant witness in Young and her husband were at home when their house was broken into by a robber whose head and face were largely covered. The witness was unable to provide more than a general description of the perpetrator and was unable to assist a police sketch artist because the perpetrator's face had been covered.  A month later, she was shown a photo array containing Young's photograph and did not identify anyone. However, the following day, when the complainant was shown a live lineup that again included Young—the only person to appear in both the photographic and live lineup—she identified him as the perpetrator.

In ruling that the New York courts had misapplied controlling Supreme Court law when they ruled that the prosecution had met its burden of establishing an independent basis for this testimony, the  Second Circuit addressed a number of problems with the identification. Among the factors impacting the reliability of identification testimony discussed in the opinion are (1) the witness’s limited opportunity to view the assailant; (2) the impact of disguise, the challenge of identifying a person of another race; (3) the measures of description accuracy, weapons focus, the length of time that passed between the crime and the identification; (4) the relationship, if any between witness confidence and accuracy; and (5) the problem of unconscious transference and multiple viewings of the same suspect. This decision should be read and cited by both counsel and courts considering issues relating to identification evidence.

Disclosure: I represented Mr. Young along with John Blume. Also, there was a wonderful amicus brief from the The Innocence Project, who were represented by attorneys at Paul Weiss, which was relied upon by the Court.

Limits to Police Deception in Interrogation

Deception is an accepted part of police interrogation techniques.  This year, two Appellate Divisions have reached opposite conclusions, with arguably conflicting rationales, likely to be taken up by the Court of Appeals.  They are a reminder that two matters are critical when dealing with police deception during interrogation.  The first is the risk that the defendant will be coerced into making a false confession, the second is that he will be coerced into making a statement at all.

The Third Department in People v Thomas (93 AD3d 1019 [3d 2012]) decided in March that police deception was not sufficient to render the resulting statement involuntary.  The defendant was suspected in a shaken baby case.  Police knew that the child was not expected to survive, and yet told the defendant that they needed to know exactly what the defendant did, so that treatment of his child could be effective.  The Third Department held that this was not improper:

"Also contrary to defendant's vehement claims, the strategies and tactics employed by the officers during these interviews were not of the character as to induce a false confession and were not so deceptive that they were fundamentally unfair and deprived him of due process. The officers' repeated misrepresentation that defendant's truthfulness might enable doctors to effectively treat Matthew did not render his statements involuntary, because appealing to his parental concerns did not create a substantial risk that he might falsely incriminate himself (see id.; People v Dishaw, 30 AD3d at 690-691; People v Henderson, 4 AD3d 616, 617 [2004], lv denied 2 NY3d 800 [2004]). Indeed, common sense dictates the opposite conclusion, i.e., that parents, aware of their child's life threatening predicament, would accurately disclose any information that might enable doctors to save their child."

Wednesday, the Second Department reached the opposite conclusion under similar facts (People v Aveni, 2012 WL 4901136 [2d October 17, 2012]).  The defendant was a suspect in the drug overdose death of his girlfriend.  However, he was told by police that she was being treated and that she would die without proper care, which required telling the doctors what had happened.  Defendant admitted to injecting her with heroin.  The Second Department did not reach the opposite conclusion in one critical sense.  Key to the Third Department decision in Thomas was the belief that, if the police deception was effective, it could only produce a truthful statement.  The Second Department did not hold that telling the defendant the doctors needed to know what the victim had in her system would produce a false yet incriminating statement.  However, the court ruled that the police were unduly coercive because - in effect - they told the defendant that if he did not tell them what he did that the (already dead) victim would die and that the defendant would therefore face murder charges.  The lies coerced the defendant to speak at all, and were held to be improper pressure:

"Notably, in People v. McQueen (18 N.Y.2d at 346), the officers used mere deception by telling the defendant that “she might as well admit what she had done inasmuch as otherwise the victim, who she had not been told had died, would be likely to identify her,” but did not threaten her with repercussions if she chose to remain silent.1 In this case, by contrast, the detectives not only repeatedly deceived the defendant by telling him that Camillo was alive, but implicitly threatened him with a homicide charge by telling the defendant that the consequences of remaining silent would lead to Camillo's death, since the physicians would be unable to treat her, which “could be a problem” for him. While arguably subtle, the import of the detectives' threat to the defendant was clear: his silence would lead to Camillo's death, and then he could be charged with her homicide ...*7 In this case, the detectives coerced the defendant's confession by deceiving him into believing that Camillo was alive and implicitly threatening him with a homicide charge if he remained silent. The detectives used the threat of a homicide charge to elicit an incriminating statement by essentially telling the defendant that the consequences of remaining silent would lead to Camillo's death, which “could be a problem” for him. Faced with this Hobson's choice, the defendant had no acceptable alternative but to talk to the police. By lying to him and threatening him, the detectives eviscerated any sense the defendant may have had that he could safely exercise his privilege against self-incrimination and put the People to their proof. Either he would tell them what he knew or he would face the probability of life imprisonment if Camillo died. In light of the detectives' implicit threat of a homicide charge if the defendant remained silent, we cannot conclude that the defendant voluntarily waived his Fifth Amendment privilege against self-incrimination "

To the extent that police coercion is limited to telling the defendant that medical personnel need to know the truth in order to treat the defendant's loved one, this is unlikely to coerce a false statement (though it could cause the defendant, who has been told what "the truth" is by police, to make a false statement regarding culpability).  However, lies which coerce the defendant into speaking at all, especially the implication that failing to admit culpability will result in a homicide prosecution, is improper. 

Tuesday, September 18, 2012

Sentencing in New York - A Primer

Jill Paperno,
Special Assistant Monroe County Public Defender and
author of Representing the Accused: a Practical Guide to Criminal Defense (See)

This post is aimed at reviewing some basics of felony sentencing that those who don't handle it on a regular basis may not be familiar with yet.  First, most sentencing information can be found in Article 70  of the Penal Law, but it is dense and confusing, and even those who have practiced for years have trouble understanding it.  If you have questions about a sentencing matter, as with anything, talk to more senior attorneys.  The following rules are general - there are exceptions, and if you look at the statutes, there are many specific sentences for specific charges, so it's getting impossible to memorize the sentencing schemes the way attorneys could many years ago. 

There are three types of sentences involving straight (not intermittent) incarceration.  They are definite sentences, indeterminate sentences and determinate sentences. 

Definite sentences 
Definite sentences are sentences of one year or less, and they are served in local (instead of state) facilities.  They can run concurrently or consecutively with other sentences, although if they run with probation sentences and exceed the amount of time one can spend in jail while on probation they may void the probation part.  But that's a memo for another day.  They can be imposed for violations that permit jail time sentences, misdemeanors, and felonies for defendants who do not have "predicate" felonies (see below) and are convicted of felonies that do not require state prison 

A definite sentence is reduced by one third if a client does not lose good time while incarcerated (doesn't get into trouble in jail).  Definite sentences may be part of probation sentences (shock probation) and run at the same time as probation sentences.  The maximum definite sentence a person can serve on a misdemeanor while serving probation is 60 days, and the max on a felony is 6 months.   

Definite sentences can run consecutively.  Once a person has several consecutive definite sentences the time they spend in jail caps out at 2 years.  In other words, if they get three years consecutive on definite sentences they serve 2/3, or two years.  If they get four years it still caps at two years.  (I decided not to add statutory references because it would take me too long to write this but if anyone else wants to that would be awesome.) 

Definite sentences are not followed by post-incarceration supervision, such as parole or post-release supervision.  (By the way, probation is a sentence of supervision in the community that is in lieu of jail; parole and post-release supervision are sentences that follow a sentence of incarceration except when the sentence is directly to parole as a Willard sentence.) 

Indeterminate sentences 
Indeterminate sentences are imposed on two types of felonies - non-violent felonies and really bad felonies. 

An indeterminate sentence is a sentence that has a minimum and a maximum.  The minimum is the time a defendant must serve before s/he is eligible for parole.  It's not a guarantee of release - it's just the first time a defendant sees the Parole Board. Indeterminate sentences are served in state prison. 

Non-VFO Indeterminates 
If a client receives an indeterminate sentence such as 1-3, the client sees the Board after 1 year (but if there was jail time served prior to sentencing the 1 year is reduced by that time).  If a person is released after seeing the Parole Board they are released to parole, a form of supervision.  Jail time credit also reduces the maximum on an indeterminate. 

On an indeterminate sentence where there is a number for the max - like the "3" in the example - the defendant has to serve 2/3 before s/he is eligible for conditional release.  That means if the defendant has not lost good time in prison ( not lost time based on misbehavior) s/he can be released after 2/3 of the sentence to conditional discharge.  But be aware, in DWI and sex offense cases, the conditions are so onerous that a person may not get released at that time.  If a person is released at the conditional release date ("CR") s/he is released to a form of parole supervision, conditional release.  This is called being - you guessed it - "CR'd". 

If a person does not get released until the maximum date - the "3" in the prior example, that is called being "maxxed" (sp?) or "maxxing out" (sp?).  If you max, you are not on supervision afterwards. 

VFO, Drug, Sex Offense or Persistent Indeterminates 
If a client is convicted of an A felony (murder, certain sex offenses or drug offenses) or convicted as a persistent offender the indeterminate sentence still has a minimum and a maximum, but the maximum is life.  That means that a defendant must serve the minimum before being eligible for parole, and then can see the Parole Board.  As with other indeterminate sentences, if the defendant is not released at the first parole board meeting, they can return every two years or so - but that doesn't guarantee release.  In the case of a life sentence, the defendant may never be released by the parole board.   

The minimum time on indeterminate sentences can be reduced in some cases by participation in programming, but it is unlikely that will happen with a minimum of less than 3 years, since the programs take a while to get into and complete. 

Determinate Sentences 

Determinate sentences are sentences imposed for violent felonies.  They are periods of incarceration in state prison.  They include a single number that represents the time a person will spend in prison, and another number that represents a period of post release supervision.  Post release supervision is another word for parole (created after New York politicians claimed they were eliminating parole for violent offenders, if memory serves).  So the sentence may be described as something like "5 determinate, 2 1/2 post release supervision".   On a determinate sentence a defendant has to serve 6/7 of the time before s/he can be released.  Long story about what happens to that other 1/7.  If a person on a determinate sentence is released s/he will then be under post release supervision,. 

With non-VFO determinate sentences (drug cases), a defendant may be able to participate in programs to reduce the sentence another 1/7. 

Determinate sentences were enacted, again if memory serves - and it does less and less these days -  in 1998, so sentences prior to that time for VFOs were indeterminate, with minimums being half of the maxes.   

Predicate Felonies 

If a person has a prior felony conviction, that will affect the type of sentence they can receive on a new felony.  There are many issues relating to prior felonies in determining whether they constitute "predicate" felonies for sentencing purposes  - including whether the priors are actually felonies, whether there were legal issues at the time that prevent them from qualifying as predicates, and most importantly, when they occurred. Youthful Offender adjudications do not count as prior felonies.   A felony does not count as a predicate felony (except for persistent felonies and persistent violent - another memo for another day - phew - lots to do) unless the conviction was within ten years of the current offense.  So the easy example is if a person has a felony in 2005, and picks up a new charge today - clearly within the ten years.  If the prior constitutes a felony in NY and meets other statutory criteria, and was not a YO, the person is a predicate for sentencing purposes.  But what about if the felony was in 1998?  Can that qualify as a predicate?  Depends.  If the person spent time in prison or in jail - basically time incarcerated - between 1998 and now, and that time prevented the defendant from having ten years of "street time", then the person is a predicate.  In other words, if the 1998 conviction resulted in a 5-15 year sentence, and the defendant wasn't released until 2003, then that person hasn't had 10 years of street time and is a predicate felon for sentencing purposes. 

If a defendant has a prior felony, it does not affect the time they can spend on a definite sentence. 

If a defendant has a prior felony and a new non-VFO, on a conviction for the new felony, the sentence must be an indeterminate sentence.  The amount of time depends on what level felony the new charge is. 

If a defendant has a prior felony conviction and a new VFO, on a conviction for the new charge the sentence must be a determinate sentence with a period of post release.  The amount of time depends on whether the prior was a VFO or non-VFO, and the level of the new charge. 

A word about Jail Time Credit and Concurrent/Consecutive Sentences 

Once a person starts serving a sentence, they no longer accrue jail time credit toward their other charges.  If a sentence is imposed concurrently to another sentence, but the other sentence has concluded, the full sentence will have to be served.  These are often concepts that attorneys are not familiar with, and sometimes cause us to tell clients they will be serving less time than they actually wind up serving.  Please feel free to talk to more experienced attorneys when you're trying to work out dispositions that may be affected by other pending charges or sentences that have already been imposed.  The jail records office at the Monroe County Jail, and the New York State Department of Corrections Office of Sentencing Review is also helpful in figuring out what a negotiated sentence will actually mean to your clients. 

Wednesday, September 12, 2012

Presumptions In Criminal Possession of a Weapon Case

Jill Paperno,
Special Assistant Monroe County Public Defender

In defending a client charged with criminal possession of a weapon it is important to be familiar with the various presumptions set forth in Penal Law 265.15.

(1) Machine-guns – presence is presumptive evidence that all in the area possessed

(2) Presence in stolen vehicle of items specified in the statute is presumptive evidence that all in the vehicle possessed

(3) Presence in an automobile of items listed is “presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found” except (a) if it’s on the person of one of the occupants (b) it is in a taxi so it does not apply to the driver, or (c) if it’s a pistol or revolver and an occupant, “not present under duress” has a license to carry and conceal.

            This is an important presumption to know.  When your client is a back seat passenger in a car occupied by three people including the driver, and the gun is found in front of the front seat passenger (or possibly even in the trunk), your client can still be charged.  But see People v. Wilt, 105 AD2d 1089:

Here, defendant testified in his own defense and called several witnesses who corroborated his story that he had only been in the automobile for five or six minutes to look for his girlfriend. He stated that he had never looked in the trunk of the car which had a missing trunk lock and did not know that a gun was inside the trunk. The overwhelming and uncontradicted evidence renders the statutory presumption of Penal Law unconstitutional as applied to this defendant. In our view, there is no “rational connection” between the discovery of the gun in the trunk and defendant's presumed possession (cf. Leary v. United States, 395 U.S. 6, 33, 89 S.Ct. 1532, 1546, 23 L.Ed.2d 57;  Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519). Absent the statutory presumption, the evidence is legally insufficient to convict defendant of knowingly possessing a loaded firearm as a matter of law.

People v. Wilt, 105 A.D.2d 1089, 1090, 482 N.Y.S.2d 629, 630-31 (1984)There are some terrible cases on this.  You should consider whether to move against the indictment based on the use of the presumption before the grand jury, to seek clarification of the basis for the indictment in your request for the bill of particulars, and to attempt to avoid its use at trial.  If you cannot avoid its use, be prepared to be familiar with the jury instruction and argue against the application of the presumption (which constitutionally is actually a “permissive inference”) to the jury.

The presumption and automatic standing

            If a defendant is charged solely based on the presumption, the defendant has automatic standing to challenge the stop or seizure of the weapon.  (This does not mean the facts will necessarily be sufficient – see People v. Mendoza 82 NY2d 415.)  If the possession is charged based on actual or constructive possession and the presumption, there is no automatic standing.

The Court of Appeals in People v. Millan (supra ) recognized an exception to this standing requirement where the People charge the defendant with possession solely on the basis of the statutory presumption that allows a defendant to be convicted based on his or her mere presence in the automobile or room in which contraband is found (Penal Law § 220.25 [narcotics]; § 265.15 [weapons] ). The Millan Court held, as a matter of fundamental fairness, that a defendant charged with actual possession solely on the basis of a statutory presumption has “automatic standing” to challenge the legality of a search. The “critical factor” (69 N.Y.2d at 518, 516 N.Y.S.2d 168, 508 N.E.2d 903) in the Court's holding was that the charged crime was founded “only” (id. at 519, 516 N.Y.S.2d 168, 508 N.E.2d 903) on the statutory presumption. Indeed, the Court stressed two more times that its holding was limited to cases in which the prosecution's case is based “solely” or “entirely” on the presumption (id.). Clearly, we must give effect to this unequivocal statement of the Court's holding. The fatal flaw in defendants' position is that it requires us to disregard that unequivocal statement.

People v. Cheatham, 54 A.D.3d 297, 299, 863 N.Y.S.2d 407, 410 (1st Dept 2008).

            In order to pursue your opportunity to have a probable cause hearing you should make every effort to establish that the charge of possession, if based on the presumption, was based solely on the presumption.  You can start by seeking a statement in your request for bill of particulars about the nature of the possession.   Request that the prosecutor specify whether the alleged possession of the weapon is based on actual possession, constructive possession or the presumption.  It is important to challenge a claim that the possession is alleged based on the presumption and some other type of possession, because if a defendant is alleged to have possessed two ways, the defendant is not entitled to automatic standing to challenge the stop and/or seizure.  So if the prosecutor alleges actual and constructive, don’t just accept their word for it.  Analyze what the nature of the possession is.  If the prosecutor asserts that it is actual possession, you probably still have a good basis to assert standing, at least as to the stop and seizure of the defendant that led to the seizure of the weapon.  If the prosecutor asserts that it is constructive, then consider whether it really meets the legal standard for constructive possession.

In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized (see, Penal Law § 10.00[8]; People v. Francis, 79 N.Y.2d 925, 582 N.Y.S.2d 982, 591 N.E.2d 1168; People v. Pearson, 75 N.Y.2d 1001, 557 N.Y.S.2d 269, 556 N.E.2d 1076 [evidence legally insufficient to establish defendant's constructive possession of cocaine found in back room of grocery store in absence of evidence that defendant owned, rented or had control over or a possessory interest in store or room];7 People v. Tirado, 47 A.D.2d 193, 366 N.Y.S.2d 140, affd. on opn. below, 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608 [proximity of drugs in apartment and defendant's control of premises support conclusion of constructive possession]; People v. Diaz, 112 A.D.2d 311, 491 N.Y.S.2d 758 [evidence that defendant instructed another to retrieve and sell cocaine to undercover officer sufficient to establish defendant's constructive possession of cocaine]; People v. Rivera, 77 A.D.2d 538, 430 N.Y.S.2d 88 [defendant who commanded his brother to get a gun and pull trigger had complete dominion and control over gun]; cf., People v. Patel, 132 A.D.2d 498, 133 A.D.2d 38, 518 N.Y.S.2d 384, lv. denied, 70 N.Y.2d 935, 524 N.Y.S.2d 687, 519 N.E.2d 633 [in absence of any proof that defendant had authority over person in actual possession of gun, there is no constructive possession] ).

People v. Manini, 79 N.Y.2d 561, 573-74, 594 N.E.2d 563, 569-70 (1992).

            If there is no actual possession and no constructive possession that meets the legal standard, then the possession is based on the presumption, and you are entitled to automatic standing for purposes of getting the hearing. (In Cheatham, supra, the Appellate Court noted the defendant’s oral and written statements acknowledging his proximity to the cocaine in denying his claim to automatic standing. People v. Cheatham, 54 A.D.3d 297, 863 N.Y.S.2d 407 [2008])

            A word about motions seeking probable cause hearings – the law does not require that you provide an affidavit from your client.  But some judges, despite the clear statutory language, as well as the clear import of case law, still require an affidavit.  Sometimes making the record is more important.  Sometimes getting the hearing in order to have a shot at suppression or getting the opportunity to question the officers is more important.  Make sure you decide what to do based on what will help your case the most, but be careful about what you put in any client’s affidavit you provide to the court as it can be used against your client. 

(4)  Possession of a weapon…made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another. 

            What if the prosecutor now seeks to bootstrap the possession charge to a possession with intent to use unlawfully against another, using the presumption of unlawful intent contained in Penal Law 265.15(4)?  There is a bar to premising one inference upon another as a basis for conviction.  In People v. Dumas the Kings County Court articulated the basis for opposing the use of two presumptions together to elevate a count:

While Courts generally permit the introduction of proof of circumstances that may have “a fair and legitimate influence in determining the question involved ...” (see, People v. Razezicz, supra, 206 N.Y. at p. 270, 99 N.E. 557), the unsupportable “coupling” of two statutory presumptions, as occurred in this case, had the effect of preordaining a conclusion which the Grand Jury could never have reached by legally sufficient independent evidence. As noted by one commentator: “statutorily enacted ... permissive inferences have received the official imprimatur of the state; they have been enshrined in official rules of law expressed in formal legal language. These official actions convey disproportionate authority and carry more weight with juries than other items of admissible evidence” (see, Collier, The Improper Use of Presumptions in Recent Criminal Adjudication, 38 Stanford L.Rev. 423, 442 [1986] ). After scrutinizing the Grand Jury minutes, it is clear to this Court that the finding that defendant intended to use the weapons unlawfully against another did not flow naturally, logically or rationally from any proven facts, but was based entirely upon the impermissible “bootstrapping” of presumptions. If the defendant had been the actual shooter or if she had physically possessed the weapons, a different result might ensue (see,People v. Coluccio, 170 A.D.2d 523, 566 N.Y.S.2d 87 app. den. 77 N.Y.2d 993, 571 N.Y.S.2d 919, 575 N.E.2d 405; People v. Gillespie, 168 A.D.2d 567, 562 N.Y.S.2d 783 app. den. 77 N.Y.2d 961, 570 N.Y.S.2d 494, 573 N.E.2d 582; People v. Lee, 154 A.D.2d 399, 545 N.Y.S.2d 786 app. den.75 N.Y.2d 772, 551 N.Y.S.2d 914, 551 N.E.2d 115; People v. Wooten, 149 A.D.2d 751, 540 N.Y.S.2d 533 app. den. 74 N.Y.2d 822, 546 N.Y.S.2d 580, 545 N.E.2d 894; People v. Wynn, 108 A.D.2d 768, 484 N.Y.S.2d 927). Indeed, if there had been a scintilla of evidence which might rationally support a charge that she intended to use the weapons, this indictment would be sustained (see, Matter of John N., 168 A.D.2d 386, 563 N.Y.S.2d 397; People v. Evans, 106 A.D.2d 527, 483 N.Y.S.2d 339). Here, the “intent” charges were proffered merely because defendant was present in the automobile, in which weapons were found. This, alone, was insufficient. (See, People v. Nieves, 135 A.D.2d 579, 522 N.Y.S.2d 166 app. den. 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 58; People v. Cummings, 131 A.D.2d 865, 517 N.Y.S.2d 225; People v. Wade, 122 Misc.2d 50, 469 N.Y.S.2d 571 supra ).
In conclusion, while this Court finds a sufficient basis in fact to support the rebuttable presumption that defendant possessed weapons3, (in that she appears to have knowingly participated in their transport from North Carolina to Brooklyn), there is no rational basis to invoke the further presumption that she also intended to use those weapons unlawfully against another.

People v. Dumas, 156 Misc. 2d 1025, 1029-30, 595 N.Y.S.2d 644, 647-48 (Sup. Ct. 1992)

(5)  Possession of a defaced machine-gun, firearm, rifle or shotgun is presumptive evidence that the person who possessed it also defaced it.

But on the other hand, there is no “room presumption” for possession of weapons as there is for possession of controlled substances.

Saturday, July 7, 2012

Let The Record Reflect

On direct appeal,  with limited exceptions, such as facts as to which a court may take judicial notice, the appellate courts may only consider the facts as they appear on the record (see,e.g., People v Kinchen, 60 NY2d 772 [1983]). Yet sometimes significant and material portions of the proceedings may not appear on the record. For example, Sandoval hearings may be conducted in chambers without a court reporter present. 
Although some appellate decisions permit  an appeal to be held in abeyance pending a reconstruction hearing   (see, People v Odiat, 191 AD2d 183;  People v Armlin, 37 NY2d 167, 173; People v. James, 132 A.D.2d 932, 933 ), the Court of Appeals has restricted the use of reconstruction hearings to establish a record (People v Velasquez, 1 NY3d 44 [2003] ["Reconstruction hearings may be appropriate where it is clear that a proceeding took place that was not transcribed ( see e.g. People v. Michalek, 82 N.Y.2d 906 [1994] [reconstruction hearing ordered where Sandoval hearing held but not transcribed] ); the trial court refused to record the proceedings ( see e.g. People v. Davidson, 89 N.Y.2d 881 [1996] [trial court refused to record substantial portions of voir dire proceeding] ); the minutes have been lost; or there is significant ambiguity in the record. Reconstruction hearings should not be routinely ordered where, as here, the record is simply insufficient to establish facts necessary to meet the defendant's burden of showing that he was absent from a material stage of the trial."]). 
Rather than wait until appeal to discover whether one's client will be able to appeal on a record which fully and accurately captures all that occurred in the lower court, trial counsel can and should take the simple step of reciting for the court reporter to record that which occurred but had not been recorded ("let the record reflect that...). As the decision in People v Torres (2012 NY Slip Op 05461 [4th Dept 7/6/12]) demonstrates, the difference between a client obtaining a reversal may depend on something as simple as an attorney recounting on the record before a court reporter that which had occurred unrecorded.
In Torres, there was partial closing of the courtroom during jury selection that resulted in the exclusion of the defendant's wife. There was no contemporaneous record objection to this exclusion. Later, in the context of a post-trial 330.30 motion, there was an agreement by the court and parties that the defendant had, in fact, objected. Although the Appellate Division panel split 3-2 as to whether the courtroom closing was reversible error, the entire panel agreed that the issued had been preserved for review as a matter of law.
As the majority opinion explains
defendant's objection was made off the record, the parties and the court agreed during argument on defendant's post-trial motion to set aside the verdict that defendant had indeed objected to the court's procedure. It is well settled that a post-trial motion pursuant to CPL 330.30 cannot preserve a contention for review that is raised for the first time in the motion (see People v McFadden, 94 AD3d 1150, 1150; People v Jones, 85 AD3d 1667, 1668), but as noted that is not what occurred here inasmuch as defendant made an objection before jury selection. The objection merely was not placed on the record at that time. Here, the record establishes that "the trial judge was made aware, before he ruled on the issue, that the defense wanted him to rule otherwise, [and thus] ]preservation was adequate" (People v Caban, 14 NY3d 369, 373).